Studzr 2/2006

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Dr. Mattbias S. Fifka::·

Party and Ioterest Group Involvement in U.S. Judicial Elections

Abstract

In 2004, a race for a seat on the Illinois Supreme Court cost $ 9.3 million, which exceeded the cxpenditurcs made in 18 U.S. Senate races in the same year. Overall, candidates for state Supreme Courts spent $47 million on their campaigns in 2004, and parties and interest groups invested another $ 12 million to influence the electoral outcome. In the following paper it is argued that judicial elections in thc United Statcs havc bccomc incrcasing- ly similar to political elections and that money is a crucial determinant for winning a judicial election. It is also argued that the increasing dependence of judges on campaign contributions severely endangers judicial impartiality. When making decisions on the bench judges now more than ever not \ only have to take into consideration the facts presented, but also the will of their supporters.

::- Dr. Matthias S. Fzfka is assistant professor for American and Interna- tional Politics at the Friedrich-Alexander-Universität Erlangen-Nürn- berg. He has published numerous articles and books on interest groups and the political process in the United States. 2/2006 286 ｓｾｴｾｴｴ､ｾｚｾｒｾＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭ

I. Introduction

Th mere idea of "judicial elections" may sound somewhat odd to the European ear be:,.tUse it is uncommon in the Old World that judges are elcctcd dircctly by the citi- . ns. Even in Great Britain, whose common-law systemwas one of the foundations ｺｾ＠ American legal system was built upon, judges are appointed by authorities, in ｾｮｾｳｴ＠ cascs the Queen hcrsclf. 1 In the United States, thc Prcsidcnt also has thc author- ity to appoint Judgcs with the consent of the Senate. Howcver, this nomination and confirmation process only applics to judges for federal courts. Aside from the federal court system, each individual state has its own court systcm and the right to select the judges for its courts in whatever manner it deems proper. Most of the states have a three-levcl court system. On the lowcst Ievel, so-callcd "circuit" or "district courts" can bc founcl, followed by "Courts of Appeals" and the statc Suprcme Court as highest court.2 As judicial sclection mcthod, 38 out of 50 states apply some form of clection. Eight states3 hold partisan elections, in which candidatcs are nominared by the partics ancl run undcr their banner. In fiftecn states,4 Judges arc elected in nonpartisan contests, where partics are - at least officially - not involved in the nomination process. Finally, ninetecn states5 hold so-called "retention elections" in which it is decided whether a judge retains his office or not. That means that the office-holder- rcferred to as "incumbent" - solcly faces an up-or- down vote with no opponent. Retention elections are held for candidates who want to serve subsequent terms, usually pcriods of four to fivc ycars, aftcr thcy have first comc into office through partisan clcctions or appointment. Overall, eighty-six percent of Amcrica's juclges must stand for election.6 The election of judges can be regarclcd ambiguously bccause an election usually is precccled by an clection campaign that costs moncy. Potential candidatcs might not have the nccessary financial means to finance a campaign and, thus, turn to supporters who can proviele the needed monetary assistance. Supportcrs can now appcar in

Fora full dcscription of thc judicial appointmcnt process in Great Britain sec Dcpartmcnt for Constinnional Affairs. Appointmcnts, http:/ /www.dca.gov.uk/appointmcnts.htm [Dcccmber 2, 2005]. 2 Some statcs (e. g. New Hampshire or Montana) only havc a two-lcvel-system, while other states evcn luve four ( e. g. Pennsylvania or Mississippi) or five different court Ievels ( c. g. Ten- nessec or Kentucky). Detailed information on the court-systcm of the individual states is provided by the American Judicature Society, Judicial Sclcction Methods, http://www.ajs.org/selection/sel_state-select-map.asp [Dccember 2, 2005]. 3 Alabama, Illinois, Louisiana, New Mexico, New York, Pennsylvania, Texas, West Virginia. 4 Arkansas, Georgia, Idaho, Kentucky, Michigan, Minncsota, Mississippi, Montana, Ncvada, North Carolina, North Dakota, Ohio, Oregon, Washington, Wisconsin. 5 Alaska, Arizona, California, Colorado, Florida, Illinois, Indiana, lowa, Kansas, Maryland, Missouri, Ncbraska, Ncw Mexico, Oklahoma, Pennsylvania, South Dakota, Tennessee, Utah, Wyoming. 6 Deborah Goldberg!Samantha Sanchez, Thc New Politics of Judicial Elections 2002, 3, http:// www.justiccatstakc.org/files/NcwPoliticsReport2002.pdf [Decembcr 8, 2005]. - Fifka Party and Interest Group Involvement in U.S. Judicial Elcctions 287

the forms of wealthy individuals, intercst groups, or- espccially in states which hold partisan elections - political parties. If a group or party was successful in helping a candidatc into office, the respective candidatc might certainly feel obliged to his sup- poncrs and make decisions in thcir favor. Looking at it from the group's or party's viewpoint, the judge will evcn be cxpccted to make decisions beneficial for his prior supporters because they cxpect a "return on investment". Thercfore, state judicial clections seem to endanger thc "independencc of thc judgcs" which Alexcmder Rarn- ilton had already advocated in thc Federalist Papers in 1788 in order "to guard the Constitution and rhc rights of individuals from the effects of those ill humors, which the arts of designing mcn, or the influence of partict!lar conjuncturcs, somctimes dis- 7 seminate among thc people themselves ... " • Tbc purpose of this papcr is to examine how and to what extent panies and intcrest groups are involved in statc judicial elections in thc United Statcs. Following abrief ovcrview of the historical development of party and interest group cngagement in judicial elections, thcir motivation for influencing judicial elcctions will be discussed. Afterwards, recent contribution trends, which could be observed in the 2002 and 2004 state Supreme Court elections, will bc analyzcd in depth. In a first stcp, the amount and structure of contributions to judicial candidates are examined. In a sec- end stcp, it is analyzed how thcsc campaign donations are used. Here, special attention is placed on expenditures for tclevision advertisemcnts, which havc incrcased substantially ovcr the last ycars in judicial campaigns. In a third stcp, it is examined to what degree campaign contributions in generaland tclevision advcniscmcnts in spc- cific are crucial for the outcome of the election and if candidates who spent !arge amounts on their campaigns emergc victorious morc frequcntly than candidatcs who only had smaller funds availablc. Bascd upon this analysis, an answer to the qucstion, whether the "indepcndence of the judges" is imperilcd in thc individual statcs, will be offcrcd. Finally, an outlook on the future developmcnt of judicial clccrions and potential rcforms to safcguard judicial independence arc discusscd.

II. The Historical Development of Party and Interest Group lnvolvement in State Judicial Elections

State judicial clections have not attracted the attention of either the public or of interest groups and parties for a lang time, while, throughout the 20'h century, nomina- tions of judges for federal couns, in particular for the U.S. Supreme Court, usually have received substantial press coveragc and likewisc generared attempts to influencc the presidential nomination and scnatorial confirmation process. Already in 1930, Ia- bor unians and the liberal press succcssfully put fierce pressure upon the Senate to reject Herbert Hoover's conservative nominee to the Suprcme Court,]ohn]. Parker.

7 Alexarzder Hamilton/john ]ayl]ames Madison, Thc Federalist Papers, 1961, 469. 2/2006 288 StudZR

!'beral appointees by Lyndon B.]ohnson - Abe Fortasg and Homer I 1968 !1 ' tWO l d a similar destmy, , w h en t h c 5 enate d eme ' d t h etr , nommanon ' ' after Th orn b erry - f a Ce ' 9 having been lobbied by conservative interest groups. Probably the most controver- . 1 · t' to thc US Suprcme Court was the one of Robert Bork, nominated by sta nomma 1011 Ronald Reagan in 1987. ａｾ｣ｯｲｾｩｮｧ＠ to ｄ･＿ｲ･ｾｯｲｩｯ＠ and ｒｾｾｯｴｴｩＬ＠ at least 147. ｩｾＱｴ･ｲ･ｳｴ＠ groups were actively lobbymg m the ｮｯｭＱｾｾｴＱｯｮ＠ｾｲｯ｣･ｳｳ［＠ 8.6 of ｴｨ･ｾ＠ｴ･ｳｮｦｬｾ､＠ before Congress, and so did 46 law profcssors. Bork s nommauon was fmally rcJected with a 42 to 58 vote in the Senate. In cantrast to the fcderal appointment proccss, statc judicial clcctions were "political backwaters" 12 which did not generate !arger public attention until the 1980s. The candidates spoke to a few groups willing to hcar them and the speechcs given dealt with possible improvements of the judiciary and had no political or ideological content. Consequently, open-seat races, which are characterized by the absence of an incumbent seeking reelection, were usually won by thc candidatc who had the most attractive name, a good ballot placement or had managed to win the endorsemcnt of a newspapcr or a lawyer's association. For an incumbent secking reelection or facing a retention election, victory was almost guarantced, if hc had avoided scandals or attacks for highly controvcrsial decisions. 13 The character of state judicial elections as "political backwaters" changed with the beginning of the 1980s and more and more clections becamc battlegrounds with high financial involvement. This development did not occur simultancously throughout the US, but first took hold in states where the candidates are nominared by parties, especially in Texas, Alabama, Illinois and Pcnnsylvania. In 1980, Texas was thc first state where campaign spcnding on judicial races for the state Suprcme Court fell in the million-dollar rangc. However, at this point of time the races were mostly funded by wealthy candidates themselves. Nevcrtheless, only four years latcr, thc first campaign which was not self-funded and cost more than one million dollars took placc, when a candidate for the position of chief justice raised about $ 1.4 million. 14 Bcfore long, the dramatic increase of campaign spending and growing financial involvement by parties and interest groups could be obscrved in other states as weil. In Pcnnsylva-

8 Abe Fortas already was associate justice at the U.S. Supreme Court. Lyndon B.]ohnson had nominated him for Chief Justice, which was rejectcd. 9 Kay L. Schlozman/]ohn T Tiemey, Organized lnterests and Amcrican Democracy, 1986, 362. 10 ]ack E. Rosotti!Christine DeGregorio, Resources, Attitudesand Stratcgies: Interest Groups in thc Bork Confirmation Process, Amcrican Review of Politics 15 (Spring 1994 ), 1-19. 11 Karen 0 'Connor, Lobbying the Justices or Lobbying for Justice? The Role of Organized In- tercsts in the Judicial Process, in: Pmd S. Herrnson/Ronald G. Shaiko/Clyde W'ilcox (eds), The Interest Group Connection, Ronald G. Shaiko and Clyde Wilcox, 2005, 319. 12 Robert S. Greenberger, Supreme Court to Decide on Judicial Candidatcs' Speech, Wall Street Journal, March 12, 2002, A28. 13 Anthony Champagne, Interest Groups and Judicial Elections, Loyola of Los Angeles Law Review 34 (2001), 1393. 14 Anthony Champagne, Judicial Reform in Texas, Judicature72 (1998), 146-150. Fifka Party and Interest Group Involvement in U.S. Judicial Elcctions 289

nia, thc cost of the avcrage Supreme Court race incrcased 159 pcrcent betwecn 1987 and 1997; in Illinois, it even rose by 776 percent in the period from 1986 to 1996. 15 Rising campaign costs soon were not only limited to states which hold partisan judicial clections. In states with non-partisan elections, interest groups instead of parties took the role as major campaign financiers. In Wisconsin, for example, contributions to judicial candidates rose by 784 percent from 1979 to 1997. 16 Duc to the input of moncy by intercst groups and partics, the racc for chief justice of the Ohio high court cost $2.8 million in 1986, whereas six years earlier it had only cost $100,000. 17 Even retcntion clcctions, which had not becn attracting engagemcnt by groups or parties in the past, as it was almost impossible to defcat thc incumbent judgc, saw growing financial involvement by Outsiders. The question that arises is why this significant increase of party and interest group involvement and the respective risc of campaign spending have occurred during the last twenty years. It is no recent development that interest groups enter the judicial arena to pursue thcir interests. Already in the 1950s and 60s, intcrest groups, who had a weaker standing with the executive and legislative branch or could not afford wide-range lobbying efforts, resorted to courts to pursue their aims. The "trcndsetters" for this development were thc American Civil Liberties Union (ACLU) and the National Association for the Advancement of Colared People (NAACP), which had only very limited access to Congress and the administration, and thereforc bcgan to advocate the cause of less privileged groups 18 by going to court. This strategy was taken up by environmental and consumcr groups in the 70s, and later followed by conservative groups and associations with primarily economic interests. Epstein observed in 1985 that "[l]ike their liberal counterparts, conservatives have entered the judicial arena with increasing regularity to achieve their goals [ ... ]. The courts are increasingly being asked to mediate competing group 19 claims, rather than claims simply between two parties ... " • As courts became increasingly important for the transmission of interests, many groups began to realize that it might not only be beneficial for thcm to go to court in the first place, but also to influence the composition of the courts. State courts obvi- ously provided an ideal platform for enacting influencc, sincc most states hold judicial clections in which interest groups could dircctly get engaged, while influence upon the federal nomination process could only bc enacted in a more indirect form. Moreover, state courts are in many respects of high importancc for a variety of groups, since they are "the final decision makers on most issues of commercial, prop-

15 Sheila Kaplan, The Very Best Judges that Moncy Can Buy, U.S. News and World Report, November 29, 1999, 35. 16 Ibid. 17 Mark Harzserz, A Run for the Bench, American Bar Association Journal, Oct. 1998, 69 quoted in Champagrze (fn. 13), 1398. 18 While the NAACP focuses on improving the situation for African Americans, thc ACLU also takes position on behalf of other etlmic groups, native Americans, homosexuals, wa- rnen, disabled and poor people. 19 Lee Epsteirz, Conservatives in Court, 1985, xii. 2/2006 290 StudZR

'I inheritancc, tort and criminallaw [ ... ]"2°. State courts decidc an over- crty, f amt y, · · · d · I U · d S f · ｾ＠ l · r portion of cascs tmnate m t 1c mtc tatcs. In 2004, or mstancc, h 1 w emmg, cases wcre filec. j'm fd c era1 ｣ｯｾｲｴｳＬＭ " compare d to approxunate · 1 y 110 mt'11' t 011""-- 387 200 . rts nationwJde. Commercial and tort law cases and appeals to thcm make m state cou . . . . bstantial numbcr of the cases tned 111 state courts and are of substannalmter- up a su any groups and orgamzauons.· · Tl1e 1'tst o f automo b'l1 c manu f acturcrs, atr · 1' mcs, cstbto m corporations and othcr companics which havc becn fincd sevcral million to acco d I . . . ll l . dollars in punirivc darnage cases an c ass acuon sum 1s enc ess. Just recent y, m De- cember 2005, Wal-Mart was ordcrcd to pay $57 million in gencral and $ 115 million in punitivc damagcs to. 116,000 ｣ｵｲｲｾｮｴ＠ and former employees. who sued the ｲ･ｴｾｩｬ＠ giant in a dass action su1t for not havmg been allowcd appropnate lunch breaks.-3 Bc- tween 1988 and 1998, such dass action filings increascd by 338 pcrcent in federal courts, while the increasc in state courtswas more than 1,000 pcrcent.24 According to industry experts interviewed by the Los Angeles Times, tobacco corporations alone spcnt $ 600 million in ｬ･Ｎｧ｡ｾ＠ fees ycarly to dcfend ｴｨ･ｾｳ｣ｬｶ｣ｳ＠ in lawsuits.25 Corpora- tions and business assQctattons thus have come to reahzc that thc best way to prevcnt such blows is to help busincss-friendly judgcs imo office. In 2000, thc Chambcr of Commcrce as the largest business association in the U.S. has spent more than $ 10 million on campaigns of judicial candidatcs.26 In thcse "judicial clection batt!cs" business is usually joined by hospitals and doctors bccausc thcy frcquently havc to pay high damagcs awarded to thc plaintiffs in medical-malpractice suits. On thc other side of thc trcnchcs, a coalition bctwcen Iabor unions, consumcr protcction groups and triallawycrs, who represent the plaintiffs and can makc !arge amounts of moncy in thc lawsuits because they usually rcceivc a sharc of the damages awardcd,27 can be found.

20 james W. Meeker, State Supremc CourtLitigantsand Thcir Disputes, 1986, 3. 21 U.S. Courts, Judicial Caseload Indicators, http://www.uscourts.gov/caseload2005/front/ marOStoc.pdf [12 Decembcr 2005]. The number mentioned herc does not include cases filcd at U.S. Bankruptcy Courts. 22 This m1mber is an cstimate calculatcd according to numbers provided by the Bureau of Justi- ce Statistics, http://www.ojp.usdoj.gov/bjs/, and U.S. Courts, http://www.uscourts.gov. In 1996, Neubauer cstimatcd that 94 million cascs wcrc filed in statc courts in thc US. David Neubauer, Judicial Process- Law, Courts, and Politics in thc United Stares, 1996, 183. 23 Lisa Alcaly Klug, Jury Rules Wal-Mart Must Pay $172 Million Over Meal Breaks, The New York Times, December 23, 2005, A22. 24 The Federalist Socicty, Analysis: Class Action Litigation, A Federalist Society Survey, Class Action Watch1(1999), 3. 25 Henry Weinstein, Attack Wagcd on Fees Anti-Tobacco Attorncys Received, Los Angelcs Ti- mes, March 15, 2001, C24. 26 William Glaberson, U.S. Chamber Will Promote Business Views in Court Raccs, The New York Times, Ocrober 22, 2000, A24. 27 In 2001, a group of trial lawyers who represented 22 states and Puerto Rico in lawsuits against the tobacco industry were awarded about $ 12 billion in fees. Weinstein (fn. 25). Fifkct Party and Intercst Group Involvcment in U.S. Judicial Elections 291

Figurc 1: Averctge Cctndidctte Frmdmising in Stctte Supreme Court Elections, 1995- 2004

400000

300000

200000

100000

0 ·' ·- 1995/96 1997/98 1999/00 2001/02 2003/04 / Sourcc: Own illustration; numbers taken from Goldberget al. (fn. 32), 16. Parties also hold a high stake in judicial elections, not just becausc thcy are often strongly linkcd to ccrtain interest groups - the Rcpublicans are closely connectcd with sevcral busincss associations, while Democrars have strong tics to unions and triallawyers -, but bccausc they have becomc aware of thc courts' "evcr-increasing 2 role as policymakcrs in the political process." R Due to the significance of state courts in state politics, parties have expanded their activities in width and are no Ionger only active in thosc states where thcy are rcsponsiblc for the nomination of candidates, but also in states where non-partisan elections are held. In fact, party involvcment in thcoretically non-partisan clections has becomc so intcnse, that "the practical differ- cnccs bctwcen a technically nonpartisan elcction and partisan clcction may be more imagined or pcrccivcd than real. "29 Additionally, partics havc also increascd their activities in dcpth and have begun to support candidates financially on a !arger scale than they did in thc past. The "cost explosion" of judicial campaigns was also fas- tered by thc adoption of more claborate and more expensive campaign techniqucs from congrcssional or presidential elcctions, such as thc usc of clectronic mcdia, which will bc examined in detail in thc following section.

111. The Financial Dimension of the 2002 and 2004 State Supreme Court Elections

In rccent years, the dcvelopmcnt of cver-incrcasing costs for judicial campaigns has comc to no halt. In thc 2004 election cyclc,"1 all candidates for state Suprcmc

28 Ibid. 29 ]. Clark Kelso, Judicial Elcctions: Practices and Trends, 18, http:/ /www.mcgcorgc.edu/govcrn- m cn t_la w_and_policy I pu b 1ica tions/ ccgl p_pu bs _jud icia l_c lccti ons_p ractices _and_trcnds _pd f. PD I' [D c- cembcr 4, 2005 J. 30 An clection cycle always compriscs a period of two ycars from thc prcvious to thc current election. The 2004 election cyclc, e. g., started aftcr the election in the fall of 2002 and Iasted until the elections in fall 2004. 2/2006 292 StudZR

Courts3' combined raised over $ 46.8 million. In the past threc cycles (2000, 2002, 2004) such candidates collected $ 123 million ovcrall, whercas in the previous three election cycles (1994, 1996, 1998) they had only raised $73.5 million.32 For the third succcssive election cycle, at least 10 candidates have raised $1 million or more for their clection campaigns. In fact, 37 state Supreme Court candidates crossed this symbolic threshold from 1999 until 2004, almost doubling the 19 who broke that barrier between 1993 and 1998.33 The increasing costs of campaigns for state Supreme Courts are reflected in the averagc amount of funds raised by the individual candidatcs, as shown in Figure 1. From the 1996 election cycle until the 2004 cycle, the average sum collected by a candidate for a Supreme Court seat has increased by almost $200,000. Candidates are increasingly dependent on outside contributors such as business associations, unions, lawyers and political parties.

Figure 2: Source of Contributions to Candidates in the 2002 and 2004 Supreme Court Elections 2002 2004 Amount in mio. $ Percent Amount in mio. $ Percent Business 8.4 29 'Yo 15.8 34% Unions 0.7 2% 0.9 2% Lawyers 10.7 37% 11.7 25%

/ Parties 2.8 10% 6.7 14% Candidates 2.3 8% 1.8 4% '""'· Other 4.1 14% 10.1 21% Total 29.0 100% 47.0 100%

Source: Own illustration; numbcrs provided by thc Breiman Center for Justice. As Figure 2 shows, aside from the fact that total contributions have risen substamially, especially business associations and parties have strengthened their financial efforts to influence the outcome of judicial clections, while unians and lawyers have approxi- matcly maintained their Ievel of support, regarding absolute numbers. For the first time since judicial campaign contributions luve been recorded, donations by business associations exceeded those made by lawyers in 2004.34 Business associations directed their donations foremost to candidates in states and districts, which are known for awarding high sums in dass action and punitivc damages suits, in order to bring busincss-friendly judges to the bench there. These states and districts are published annu- ally by the U.S. Chamber Institute for Legal Reform. For many years, Mississippi,

31 It must bc rcmarkcd that state judicial clections ccrtainly do not only consist of elcctions to the supremc courts in the different states, but also of elections to lower state courts. Howe- ver, thc analysis in this paper focuses exclusively on Suprcmc Court elcctions. 32 Deborah Goldberget al., Thc New Politics of Judicial Elections 2004, vii, http://www.justicc- atstake.org/filcs/ NewPoliticsReport2004.pdf [December 8, 2005]. 33 Jbid., 14. 34 Goldberg et al. (fn. 32), 24. Fzfka Party and Imercst Group Involvemem in U.S. Judicial Elcctions 293

Alabama, Illinois, California, West Virginia and Louisiana havc bccn top-rankcd among the statcs wherc thc largest amounts are awardcd to the plaintiffs. 35 lt is not surprising that in four of these six states - Alabama, Illinois, West Virginia and Louisiana- judgcs are sclected in partisan clcctions, which offcr vast possibilitics for influencing thc clectoral outcome. In 2004, the U.S. Chamber of Commercc as thc leading busincss association focused its attention on an election in Illinois' Fifth Judicial District wherc a seat on the Illinois Suprcmc Court was at stake. The Fifth Judicial District is located in Madison County, which has bccome known as "judicial hcllhole" and "Mad County"36 becausc of its reputation for "taking on cases othcr 37 courts refuse, and notholdingback when it comes to thc pcnaltics" • Thcrefore, trial lawyers, who handle dass action and punitivc damage suits for the plaintiffs, try to bring their cases beforc a court in Madison County, where prospects for winning !arge sums are bright. As a consequcnce, more asbcstos and mcdical-malpractice cases as weil as tobacco suits have been filed in Madison County than anywhere eise in the U.S.38 In March 2003, a Madison County circuit judge ordercd Philip Morris to pay $ l 0.1 billion in a dass action suit brought against the tobacco giant for giving misleading information on the negative effects of "light" cigarcttcs.39 Thc case was appealed and passed on to the Illinois Supreme Court, which is onc of thc main rca- sons why the business side wanted to bring another business-fricndly judge to the Supremc Court bench while the case was still pending. The othcr major reason isthat the respective Supreme Court justices wicld !arge influence whcn it comes to filling vacancies on lower courts in the district where they come from and, thus, can install "pro-business" judges. All in all, the Supreme Court race in Illinois' Fifth Judicial District turned out to bc the most expensive court race in American history and it is a primc example of how partics and intercst groups are able to enact substantial influence. On one side, thc traditional coalition of business associations and thc Republican Party campaigned for the conservative candidatc, Lloyd Karmeier, while Dcmocrats, triallawycrs and unions lined up bchind his opponent Gordon Maag. Being financially supported by such wealthy donors, the two candidates raised and spent a total of $9.3 million, which excecdcd the expenditures made in 18 U.S. Senate races in the same year. The major contribution to Karmeier came from the U.S. Chambcr of Commcrce which gave $2.3 million through the Illinois Republican Party. Gordon Maag received $2.8 million from the Democratic Party of Illinois with a !arge shareofthat amount having been raised by the Association of Trial Lawyers of America (ATLA). Maag received an additional $1.2 million from the Justice For All PAC, a political action

35 The different surveys are available at Institute for Legal Reform, http:/ /www.institutcforlcgalre- form.com/ harris/pdf/ [Dccember 18, 2005]. 36 United States: lt's a Mad, Mad World, The Economist 374, January 8, 2005, 42. 37 Ibid. 38 Ibid. 39 Pat Gauen, Judiciary's ethics lost in Supreme Court race, St. Louis Post-Dispatch, Novem- ber 8, 2004, A2. 2/2006 294 StudZR

committcc (PAC)40 that had becn established by the ATLA and scveral unions. On elcction day, the busincss community and the Republicans cmergcd victorious when Karmeier won against Maag with a 55-45 percent result at the polls. 41 Shortly afterwards, their !arge investmcnt paid off when the Illinois Suprcme Court overturncd the $ 10.1 billion verdict against Philip Morris in Dccember 2005.42 However, cconomic or monetary intcrcsts are not the only driving forcc behind increasing campaign costs in judicial races. Social controversies such as stem cell rc- search, abortion, gay marriage or affirmative action bring into play liberal and conservativc citizen groups. On thc lcft siele of thc spectrum, along with mostly Demo- crats, a coalition of womcn's, gay and civil rights groups- the Alliance for Justice and People for thc American Way bcing among thc moreprominent ones- can bc found, while Christian Right and conservativc groups, such as thc Christian Coalition, thc American Conscrvativc Union, and the Committec for Justicc, form thcir ideological opponents.43 Although these groups cannot yet offer thc financial support to candidates that groups with an economic focus are ablc to provide, thcy inscrt thcmselves into thc clections with no less vigor. Citizen groups, no matter if liberal or conservative, try to pressure candidatcs into publicly stating what thcir position on socially controversial issues is. In statcs where law forbids judicial candidates to makc such statcments, citizen groups luve successfully challenged the cxisting Statutes. In Ken- tucky, for examplc, thc conscrvative Family Trust Foundation filed a lawsuit against a provision that prohibitcd candidates from making Statements which could commit 4 1 them w dccisions thcy might have to make when elecred to rhe bench. - Candidares ofrcn have to give in to rhc prcssure cnactcd by intercst groups in ordernot to lose financial support and, thercfore, statc thcir positions, or cven sec it as a chancc to cater to thc opinion and scntimcnts of thc majority within rheir elccrorate. In 2003, Max Baer openly campaigncd as a "pro-choicc Democrat" to win a seat on thc Pennsylva- nia Suprcme Court.45 As Pcnnsylvania holds partisan clcctions, at least the fact that hc campaigned as a Democrat is not surprising, but cvcn in states which hold non- parrisan elcctions, candidates have rcadily raken up the "party Iabel" to convcy a ccrtain position to thc votcrs. In North Carolina, where candidates are not nominared by parties, candidate]ohn Tyson portrayed bimself as "your conscrvative Republican candidatc" who "belicvcs marriage is a sacrcd union of a man and wo man[ ... ] that all

40 "Political Action Committee" is a popular term for a polirical committee organized for the purpose of raising and spending money to elect and dcfeat candidates. 41 Gauen (fn. 39). 42 Ann Knef, Philip Morris cleared of $10.1 billion vcrdict, Tbc Madison Sr. Clair Rccord, Dc- ccmber 15, 2005, onlinc cdirion, http:/ /www.madisonrccord.com/ncws/ncwsview.asp?c= 171 731 [Deccmber 12, 2006]. 43 Mike France/ Lorraine Woellert, Barde Ovcr The Courts, Business Weck, Iss. 3901, Septem- ber 27, 2004. Full tcxt available at: http://www.busincsswcck.com/magazine/contcnt/04_39/ b390100l_mzOOI.htm [Decembcr 6, 2005]. 44 Beth Musgrave, Judicial Hopcfuls CanTalk On Issues, Lcxington Hcrald-Leader, February 29, 2004. Full text availablc at Jusricc at Stake, http:/ /www.justiccatstakc.org/filcs/NewPoliticsRc- port2004.pdf [Deccmber 11, 2005]. 45 Goldberget al. (fn. 32), 29. Fifka Party and Intcrest Group Involvcment in U.S. Judicial Elections 295

life is valuablc and unique" and that "the dcath pcnalty is appropriatc for violent murdcrcrs. "46

1. Television Advertisements as Campaign Medium

Parties and interest groups, no matter whether their goals are of an economic or social nature, have discovercd that tclevision is a most effective medium for advocating the candidatcs they support. In addition to thc $45.2 million in contributions, partics and intercst groups spent another $ 12.0 million on tclevision advertisemcnts. Thc Democrarie Party spent $2.8 million for advertisemems, whercas thc Rcpublicans "only" came up with $1.8 million, but business and medical groups outspent trial lawycrs and unians by $ 5.7 to $ 1.7 million.47 Often, intcrest groups try to act in the background, so that the candidatcs they support are not associatcd with "special interests". In 2004, a group called "Vaters Education Commission" poured $ 1.4 million in advcrtisemcnts into an clcction for thc Washington Supreme ·court, but from where the group's funds originated remained unknown. Only after the state's Public Disdosure Commission filed a lawsuit requesting detailed financial information, thc Chamber of Commcrce as solc financier of the "Voters Education Commission" was revcalcd_4 8 In West Virginia, Rcpublican Supremc Court candidatc Brent Benjamin profired from advcrtisements worth $3.6 million sponsored by a group namcd "Ami For Thc Sake Of The Kids". To somc surprisc, it later turncd out that most of that amount did not come from child-friendly contributors, but from Don BlankenstJip, the Chief Executivc Officer of coal giant Massey Energy Corpo- ration, who gavc $ 2.4 millionout of hispersonal pockct.49 Again, it was not by coin- cidcncc that the busincss side focuscd on a Supremc Court racc in West Virginia, as it / is one of the states wherc the largcst damagcs arc constantly awardcd to plaintiffs who suc corporations. Trial lawycrs and unions are cqually awarc of that fact and campaigned heavily, and so West Virginia turned out to be thc state in thc nation whcre the most tclevision advcrtiscments were financed by intcrcst groups in 2004. Of the 10,440 spots financed by intercst groups in State Supreme Court elections throughout the U.S., 3,829 werc aircd in West Virginia.50

46 Quotcd from ibid., 30. 47 Ibid., 8. 48 Steve Inskeep, U.S. Chamber of Commerce becomes a powcrful and oftcn sccrct forcc in election campaigns, National Public Radio, October 7, 2004. 49 Lottis ]acobson, State Supreme Court Races Get Nastier, Costlicr, Roll Call, October 21, 2004, http:/ /www.rollcall.com/issucs/50_ 44/outthcre/7175 -l.html [Dccember 19, 2005]. 50 Goldberg et al. (fn. 32), 6. 296 StudZR 2/2006

Figurc 3: ｎｲｾｭ｢･ｲ＠ of Television Advertisements by State in the Election Cycles, 2000-2004

Alab. Arkan. Gcorgia Idaho Illinois Kent. Louis. Mich. Miss. Total 2000 4,758 ------5,763 218 10,739 2002 3,594 - - 133 1,473 -- 1,030 1,479 7,709 2004 9,377 242 453 - 7,500 205 315 1,512 1,479 21,083 Total 17,729 242 453 133 8,973 205 315 8,305 3,176 39,351

Ncvada N.Mcx. N.C. Ohio Oregon Texas Wash. W. Virg. Total Overall 2000 - - - 11,907 - - - - 11,907 22,646 2002 233 -- 13,105 - 555 37 - 13,930 21,639 2004 867 326 284 14,139 181 273 5,096 21,166 42,249 Total 1,100 326 284 39,151 181 555 310 5,096 47,003 88,595

Source: Own illustration; takcn from Goldberg ct al., The New Politics ofjudicial Elections 2004, 16. Overall, the use of telcvision advertisements, which could not bc seen in judicial clections only some years ago, has risen dramatically nationwide, as thc following analysis of 17 states that hold either partisan or non-partisan judicial elections shows.51 Figure 3 shows that the number of television advertiscmcnts aired in 2004 almost doublcd comparcd to the two prcvious election cycles. The number of states, where TV ads were used in judicial campaigns, also increased dramatically. In 2000, TV ads were only used in judicial campaigns in four of the 17 states that were analyzed, whilc in 2002 the number rosc to nine, andin 2004 to 15 statcs. Thc Statementmade above, that diffcrences between partisan and non-partisan elections have basically vanished, is reinforccd by the m1mber of television advertiscments aircd in 2004. Of the 17 states in thc analysis, six hold partisan judicial elections, equaling 35.3 pcrccnt. The total m1mber of TV ads aired in states with partisan elections augmcnts to 32,994, or 37.2 percent of the overalltotal of 88,595. It is remarkable that tclevision advertiscments are not predominantly financed by parties and intcrcst groups. The candidates themsclves havc realized how important the "air war" is for winning the clcction. Whilc partics and intcrest groups spent a combined $ 12.0 million on advertisemcnts, the Suprcme Court candidates made ex- penditurcs totaling $ 12.4 million for promoting their candidacy on TV.

2. Content of Television Advertisements Television advertiscments launched in judicial campaigns usually do not deal with a wide range of issucs, but gencrally rcvolve araund eight topics which can bc identi- ficd.

51 While 23 states hold either partisan or non-partisan clections, thc analysis only includcs statcs whcrc tclevision advertisements were aircd at least oncc in onc of thc thrce elcction cyclcs considercd. Fifka Party and Interest Group Involvement in U.S. Judicial Elections 297

Figurc 4: Topics of TV advertisements in 2004 Supreme Court Elections

- ＰｾｾｾｾｾｾｾｾｾｾｾＭｾＮｉ｟ｗＮｾＺｾｾｾ＠ -- f- Traditional Civil Justice Criminal Judical Family/ Special Civil Rights Role of Justice Justice Decisions Conservative lnterests Judges Values Source: Own illustration; numbers taken from Goldberg et al. (fn. 32), 11. It is interesting to note that some of the issues mentioned are almost exclusively used in so callcd "attack ads" on opponents in the election. To promote one's candidacy does not automatically mean rhat advertisemcnts aired forthat purpose solely shed a positive light on a candidate. Especially parties and interest groups resort to "negative" instead of "positive campaigning" and try to discredit thc opposing candidate. Personal attacks below thc waist line on opposing candidates have become the normrather than the cxception in judicial races. In 2004, 52 perccnt of all ads paid for by intcrcst groups and even 54 percent of all ads paid for by parties werc negative in content and attacked the opposing candidate.52 Most of these "attack ads" are bui!t on thc topics "family values", "special interests", "criminal justice" and "judicial dccisions". The lattcr two are often linkcd with each other and former decisions the opposing candidate made arc uscd for portraying him as being soft on crime, no matter whether the candidate is liberal or conservative. Usually, thc decisions are hcavily distorted or only quotcd partly in the advcrtiscmcnts. In the crucial race in Illinois between Republican Lloyd Karmeier and Dcmocrat Gordon Maag, thc Democrarie Party of Illinois portrayed Karmeier as being soft on crime by running the following spot: "[Announcer]: He used candy to Iure the children into the hause. Once inside, the three children were sexually molested. A four-year old girl raped. Her brothers - soddomized [sie]. A Belleville man was arrested and convicted for the crime after trying to develop pic- tures of the abusc. Despite prosecutor's objections, Judge Lloyd Karmeier gave him probation, saying "The court should gram leniency ... " Another case where Karmeier Iet a violent criminal out into the community. Lloyd Karmeier - the wrang choice for Suprcme Court."53 Karmeier had, in fact, sentenced a man namcd Bryan Watters, who was diagnosed severely mentally retarded, to probation, but only after an appeals court had asked

52 Goldberget al. (fn. 32), 10. 53 Quated from Brcnnan Center for Justice at NYU School of Law, Buying Time 2004, http://www.brennancenter.org/programs/ downloads/buyingtime_2004/STSUPCT _IL_D PIL_ KARMEIER_CHILDREN. pdf [Dccember 11, 2005]. 298 StudZR 2/2006

Kttrmcicr to rcvcrse thc six-year sentence hc had originally imposed. In its dccision, the appcals court had cxplicitly suggcstcd probation as appropriate punishment. Despite ethical and honorable conduct usuall! associa.ted with tl;c judiciary, advertisements sometimes not only attack the opposmg canchdate for hts rccord, but are de- signed in such a way that the opponent scems to be the criminal himsclf. In West Vir- ginia, Republican candidate Brent Benjamin paid for an ad directcd against Democrarie incumbent Warren McGmw which opened with thc words: "According to the prosccu- 5 1 tors, he sexually molesred multiple West Virginia children. One only four years old." ' If one docs not Iisten carcfully, the imprcssion is kcpt alive throughout half the ad, that Judge McGraw was actually the onc who molestcd thc children, not the criminal. "Family" and "Conscrvative Values" arc other issucs that are oftcn used for attacking candidates. Especially liberal candidates or those affiliated or connected with the Dem- ocrats arc frequent targcts of "attack ads" launchcd by conscrvativc groups or thc Re- publicans. In the West Virginia racc betwecn McGraw and Benjamin, a wholc series of tclevision advertiscments paid for by the ominous "And For Thc Sake Of Our Kids" group ended with the words: "The choicc is clear, McGraw, a radical liberal. Brent Benjamin, expericnccd lawycr, family man, active in church, trustcd conservative. Piease vote Brent Benjamin for Suprcmc Court."55 Tbc pressurc restilting from being labeled as "liberal" and, thus, not caring about family values, has caused even Democrarie judicial candidates in the north to portray themsclves as staut conservatives. In Illinois, the Democrarie Party financed a spot in which the announcer praiscd the party's candi(late Mctag as "a conservative, [who is] pretty traditional on a lot of issucs". i\Iaag hirnself declared at the end of the advertisement: "I believe in the values of a traditional family. [ ... ] I'll protcct conscrvativc values on thc Illinois Supreme Court."56 Finally, another subject used for "negative campaigning" is to portray the opposing candidate as being bought and bribed by special intercst groups. Thc aim clcarly is to suggest that thc targctcd candidate does not care about the public as a whole, but solely about small privilegcd scgments of society. The following advcrtisement, which was directed against thrce candidatcs in Alabama and sponsored by the Ala- bama Civil Justice Reform Committee illustrates how this type of ads is dcsigned: "[Announcer]: Just when you thought we got triallawycr money out of Alabama politics, it snuck back in. Over thc last few days trial lawycrs havc pumpcd ncarly a million dollars into the judicial campaigns of Pam Baschab, Jerry Stokes, and Tom Parker. Baschab, Stokes, and Parker waitcd until thc last minute to take thcir trial lawycr money hoping you wouldn't find out. Ask Pam Baschab, Jcrry Stokes, and Tom Parker, is triallawyer moncy really good for the Alabama Supreme Court?"57

54 Quoted from ibid., http://www.brcnnanccntcr.org/programs/downloads/buyingtimc_2004/ STSUPCT_WV _ BENJAMIN_MCGRAW_DENOUNCEMENT. pdf [Decembcr 11, 2005]. 55 Quoted from ibid., http:/ /www.brcnnancenter.org/programs/downloads/buyingtimc_2004/ STSUPCT_WV _ SOTK_ MCGRAW _CLEAR_DIPFERENCES. pdf [Decembcr 11, 2005]. 56 Quoted from ibid., http:/ /www.brcnnancentcr.org/programs/downloads/buyingtime_2004/ STSUPCT_IL_DPIL_MAAG_ARMY_RANGER. pdf [Deccmbcr 11, 2005]. 57 Quoted from ibid., http://www.brennanccntcr.org/programs/downloads/buyingtimc_2004/ STSUPCT_AL_ALCJR_TRIAL_LAWYER_MONEY. pdf [Dcccmbcr 11, 2005]. Fifkct Party and Irrterest Group Involvcment in U.S. Judicial Elections 299

These attacks, which usually have some substance to them, are the reason why big contributors often try to re1nain in the background. When it became public that Don Blankenship, the head of Massey Energy, had donated two million dollars to Repub- lican candidate Brent Benjamin, the West Virginia Consumers for Justice immedi- ately launched an "attack ad" drawing on that contribution: "Out-of-state corporate bosses [Massey is registered in Virginia] are spending millians supporting Brent Benjamin. The head of one company [the picture and namc of Don Blankenship are shown], convicted of contaminating West Virginia's drinking water is spending almost $2 million to support Benjaminafter having eliminated the jobs aml health in- / surance benefits of hundreds of West Virginia families. "5H Duc to the intensive use of television advertiscments and the !arge amounts of money involved, the question arises, how campaign expenditures in general, and television advertiscments in spe- cific, influencc the outcome of clections.

IV. "Spending and Winning" in the 2004 State Supreme Court Elections

Not only because of the negative content of vicious "attack ads", judicial elcctions increasingly resemble congrcssional or prcsidential races. Developments and deter- minants of political races can also be obscrved in judicial clcctions. In the 2004 con- gressional clections, 97.7 percent of the 435 raccs for the Housc of Reprcscntatives and 88.2 percent of the 34 races for a Senate seat wcre won by the candidate who spent more money than the opponent.59 The ratio is similar in state Supreme Court clections, where 85.3 percent of 34 contested clections were won by the candidate who had received the highest contributions.60 Just as in political races, Supreme Court elections are not always "real contests" because the incumbent often enjoys !arge advantages and, therefore, no promising challengers can be found. Incumbents not only profit from a higher name recognition among the constituents, they also outperform the challengers when it comes to collecting checks. Of the 30 top-fundraising candidates, only four were challengers, and no challenger crossed the $ 1 million mark. As incumbents are hard to beat, open-seat races, whcre no incumbent is up for election, usually draw the highcst contributions. In fact, in 2004, 15 of thc 30 top-fundraisers wcre competing for open seats, with the top five collcctively raising almost $15 million in their quest for a state Supreme Court seat. 61 Overall, the 43 winners who raised money collected roughly $27 million, while the Ioscrs- includ- ing those in primary elections - raised $ 19 million.

58 Quotcd from ibid, Buying Time 2004, http://www.brcnnancenrer.org/programs/downloads/ buy- ingtime_2004/STSUPCT_ WV _WVCJ_ WHO_IS_BENJAMIN_2.pdf [Dcccmber II, 2005 J. 59 Center for Responsive Politics, 2004 Elcction Ovcrvicw, http:/ /www.opensecrets.org/ovcrvicw/ bigspendcrs.asp?Display= A&lvlcmb= S&Sort= D [Decembcr 13, 2005]. 60 Data gathered from The Institute on Money in State Politics, Judicial Elections, http:// www.followthcmoney.org/index.phtml [Dccember 13, 2005]. 61 Goldberget al. (fn. 32), 22. 300 SwdZR 2/2006

Evidcntly, contributions arc crucial for winning judicial elections, which is why the "cost" of winning has constantly increased. While the average amount raised by winning candidates was $ 450,689 in 2002, it increased by 45 percent to $ 651,586 in 2004.62 Expensive tclevision advertisements, which have becomc a necessity for eiee- roral success, are the major reason for rising campaign costs. The rclation between "winning" and "support through TV ads" is as striking as the general relation between "winning" and "spending". Of the 34 State Supreme Court races, where TV ads were uscd as a campaign medium, 29 were won by the candidate who had the largest airtime support. It has become almost impossible to win an election without having run a profound campaign on television. In 2004, a total of $24.4 million was spent on TV ads by parties, interest groups and candidates, more than doubling the previous record of $ 10.6 million set in 2000. Nowadays, the average candidate uses 25 percent of bis funds for purchasing airtime.

V. Judicial Elections and Judicial Independence

Ir would not be appropriate to "demonize" judicial elections in generalas a threat to judicial independence and an impartial judiciary. One could argue that the idea of electing judges is admirably democratic: If the people who make and enforce laws are elected, why should those who interpret the laws not be elected as weil? Moreover, it could be pointed out that the federal judicial nomination and confirmation process is also subject to the influence of party politics and outside forces such as interest groups. The current confirmation process of U.S. Supreme Court nominee Samttel Alito, who is to fill the crucial vacancy left after Sandra Day 0 'Connor's retirement, is another prime cxample of how party and group interests clash during the federal appointment proccss. A!though the fedcral process of selecting judges is anything eise than free of party and intercst group influences, it still guarantees judicial independence and impartiality to a higher degree than judicial elections mainly because of two reasons. Firstly, the involvement of two branches- the executive and the legislative- provides a bal- ance between diverging interests, especially in times of divided government, when the president and the majority in both houses of Congress come from different parties. Even when government is "unified" and one party controls thc White House and Congrcss, like the Republicans do at the moment, a presidential nominee is not amomatically approved by thc Senate. Usually, the (1iverging intcrests wirhin a party prcvent the pany from being fully lined up behind a candidate. And even intimes of strong pany idemification and decp lines between the partics in the Senate, the mi- nority party has the possibility to block the confirmation of a judge or justice 63 through a "filibustcr" , as long as it has at least 40 seats. Currently, in the nomina-

62 Ibid., 14. 63 U.S. Senators may speak as long as they want during debatcs. A "filibustcr" is the tenn used for a dcbate in the Senate which is cxtcnded on purposc in ordcr to prevent a vote from bcing Fifka Party and Intcrest Group Involvcment in U.S. Judicial Elections 301

tion proccss of Samuel Alito, all 55 Rcpublican scnators arc likcly to votc for his confirmation, but it is just as likely that at least 40 of the 45 Democrars will stop it by "filibustering". Therefore, it is difficult to instaU candidates with vicws that are considered too "radical" and compromises have to be reached. Sccondly, the appointment of federal judges for lifetime renders them fairly immune to outside influence, because they do not have to worry about reclection and, thus, do not have to cater to the intercsts of potential campaign supportcrs. An election leaves parties and interest groups with stronger possibilities to influence thc composition of courts than the nomination process does, although party and in- / terest group involvement can also have its positive sidcs. Parries and groups can provide information about the candidates which the voters otherwise might not have. Even the nomination of judicial candidates by parties can be beneficial, because the party labe! is a helpful source of information for the votcrs as Philip Dubois has noted: "[V]oter's relianee on the partisan Iabel ehoiees is, in a very real sense, a ratio- nal act. This is no less true in judieial eleetions .... Thus, researeh has repcatedly dem- onserared that whcre the partisan cue is availablc, judieial voters will rely upon it. The availability of the party Iabel both prompts votcrs to cxercise a choice, thercby in- ereasing the pereentage of the eligible eieetarate partieipating in the election, and re- sults in the expression in the aggregate of the voters' preferences for the direction of judicial policy."64 An analysis of 84 articles about the relation between judges' party affiliation and their decisions conductcd by Daniel Pinello has shown that party affiliation is a safe indicator for the ideological content of the dccisions made by the re- speetive judges.65 Moreover, parties and interest groups alike can provide necessary 66 funding for eleetivc judges to eonduct campaigns and communicate with voters. This can provide a fair chanee for a less fortunate eandidatc facing a wealthy ehal- lengcr who is able to finance his campaign by using his private fortune. However, in reeent years eontributions by parties and intcrest groups have reached a Ievel that must Iead to serious concern about state judicial elections. Interest groups and parties do not draw a distinction anymore between pursuing their aims through the political process or through the courts, and !arge donations seem to provide a powerful instrument to bring judges to the bench who arc likely to rule in their supporters' favor. The fact that 85.3 pcrcent of all contesred elections for state Su- preme Courts in 2004 were won by the eandidate who had thc largest funds available undoubtedly shows the importancc of money for winning judieial eleetions. Any serious contender can hardly be successful without a !arge "war ehest" and thereforc is dependent on wealthy donors. Parties and intercst groups are willing to make these

takcn. A debate can only be ended prcviously with a two-thirds majority, which is difficult to obtain ("cloturc"). 64 Philip Dubois, Accountability, Independence, and thc Seicerion of State Judgcs: The RoJe of Popular Elections, Southwestcrn Law Journal40 (1986), 44. 65 Daniel Pinello, Linking Party to Judicial Ideology in Amcrican Courts: A Meta-Analysis, Justice System Journal20 (1999). A full version of the article is available at: http://www.danpi- nello.com/Meta-Analysis.htm. 66 Champagne (fn. 13), 1391. 302 StudZR 2/2006

!arge ｣ｯｮｴｲｩ｢ｵｴｩｾｮｳ＠｢･｣｡ｾＱｳ｣＠ thcre is a high chancc that their ｩｮｶ･ｳｴｭｾｮｴｳ＠ will pay off once their favontc cand1datc has asccndcd to thc bench or kept l11s scat therc. As Pinello's study has indicatcd, parties and interest groups can be fairly sure that thcir "pron!gce" will rule in their favor. It is of little importancc whethcr thc ncwly clcctcd or reelccted judge decides in his supportcrs' favor out of a feeling of thankfulness, out of personal convictions, which usually reflect the ones of the supporters, or bccausc of sccuring support again in thc following election, the conscqucncc for the party or group which did not succecd in bringing its candidate to the bench is the samc: a considcrably weaker position before thc respectivc court and a higher chance to lose when it comes down to a trial. The immediate influence of contributions on judges' decisions is not only an as- sumption or probability. Judges themselves do not deny that interest groups and parties are able to put a certain pressure upon them and that they are in a way dependent on their donations. In a poll of 2,428 judges conducted by the Justice at Stake Cam- paign in 2001 and 2002, only 36 percent of the respondents answered that campaign contributions have "no influcnce at all" on their decisions, which is the answer one would expect from an indcpendent and impartial judgc. Howcvcr, 48 pcrcent of all judgcs admitted that they feit a "great deal" of pressure to raise money during campaigns, and 46 percent stated that campaign contributions influence decisions.67

As one might expect, the importance of contributions also varies according to the Ievel upon which the clections are taking place. State Supreme Court elections arc more expensive than elections to appcllate and lower courts, thus, 63 percent of the Supreme Court justices that were polled answered that thcy fecl "a grcat dcal" of pressure to raise money, while "only" 58 percent of the appellate and 46 percent of the lower judges did so. Simultaneously, the influence of donations was considered to be highest in state Supreme Courts. Only 28 percent of the respondents believed that donations have no influence on Supremc Court decisions, whereas the number rosc to 32 percent for appellate and 36 percent for lower courts.68

According to thc survey, the judges themselves secm to bc aware of the inherent dan- gcrs of judicial clections. Lcss then 20 perccnt of thc respondents ovcrall believc that judgcs should be elected in non-partisan or partisan clections. Almost 50 perccnt bc- licve that judicial posts should bc filled by "mcrit selection". Merit selcction usually is a three-step proccss. In a first step, a committcc prepares a Iist of qualificd candidates, from which the chief executive- the prcsident, governor, or mayor- makes his pick, which has to bc confirmed by the Senate. Merit selcction is usually followed by a retention clection, whcre thc voters have a choice to dctermine their judicial officcrs aftcr thcy have served for some time on thc court. The participation of votcrs has originally becn the reason for introducing judicial clcctions. In the wakc of the "Progressive Movemcnt", which called for morc in-

67 Justice at Stake Campaign, Stare Judges Frequcncy Questionnaire, http://faircourts.org/files/ JASJudges SurveyRcsults.pdf [Dccember 2, 2005]. 68 Ibid. Fifka Party and Intcrest Group Involvcment in U.S. Judicial Elcctions 303

volvcment of thc citizcns in govcrnmcnt at thc bcginning of thc 20'h ccntury, many states abandoned appointment in favor of election, cspecially bccause thc appointmcnt process was dominated by party machincs and personal connections. Nowa- days, thc new "detcrminants" of judicial elections arc not much different, as partics and wea!thy intcrest groups more or less decide the outcome of the elections through their contributions. Judicial elections have more than ever become a mechanism for thc transmission of intcrests of parties and financially wcll-to-do groups.

1. The Future Development of Judicial Elections Currently, thcrc is almost nothing which would indicatc that the trends observable during the last years will come to a halt in thc ncar future. Campaign costs and financial involvemcnt of parties and intcrest groups will continue to increase, more television advertisements will be aired and the language used in the campaigns, which is hardly becoming the conduct associated with judiciary, will bc of an cven more vicious and attacking nature in the future. In the Justice at Stake Campaign survey, 44 pcrcent of the judges polled stated that thcy are dissatisfied with thc tone and conduct of judicial candidates, and 55 pcrcent bclieve that tonc and conduct havc gottcn worsc ovcr thc past fivc ycars.69 One may spcak of a "politicization" of judicial elections, bccause- aside from the substantial need to raise money- thc same polariza- tion and aggressiveness which arc part of presidential and congrcssional races have begun to secp into the branch of government that Hctmilton strongly desired to be 70 immune to "those ill humors" • A U.S. Supremc Court dccision made in 2002 "will surcly help to spced up the 71 72 politicisation of judicial elections" • In Republican Party of Minnesota vs. White , the Supremc Court declared a Minnesota statute as unconstitutional, because in the eyes of the court it infringcd on a judicial candidate's right of frcc specch as provided by the first ame'ndment.73 Thc Minnesota rcgulation in question prohibited judicial candidates to "identify thcmsclves as membcrs of political organizations, "makc speechcs on behalf of a political organization", "attend political gatherings", "makc pledges or promises of conduct in office", or "announce his or her views 011 a dis- puted legal or political issue".74 Many states wherc judicial elections arc hcld had imposed regulations of judicial conduct, which are usually bascd 011 recommendatio11s

69 Justice at Stake Campaign (fn. 67). 70 Hamiltonl]ay/ Mctdison (fn. 7), 469. 71 United States: My judge is a party animal, Thc Economist374, January 1, 2005, 32. 72 Republiccm Party of Minnesota vs. \Y/hite (01 521) 536 U.S. 765 (2002). 73 Thc "Whitc Decision" shows similarities to thc 1976 Suprcme Court decision in Bucklcy vs. Valeo (424 U.S. 1), in which the U.S. high courtStruckdown rcgulations that probibired candidates in political clections to spend unlimited amounts on thcir campaigns and regulations that prohibited independent groups to spend unlimitcdly to voice their opinion in elections. 74 Minncsota Code of]udicial Corzduct, http://www.state.mn.us/ebranch/judstnds/canon2.html [De- ccmber 10, 2005). 304 StudZR 2/2006

75 by the American Bar Association , on the candidates in order to safeguard judicial independcnce and impartiality to at least a certain degree. Now, candidates are allowed to speak out on whatever issue they wish and to state their position on controversial issues to attract voters. Thereforc, it is no wonder that television advertisements are increasingly being used in judicial campaigns as they provide a perfect platform for transmitring the candidate's views to the voters. After the precedcncc set by the Supreme Court, many groups have successfully filed suit against similar provi- sions in other states already, e, g. Kentucky and California, which means that televi· sion campaigns and "attack ads" will sprcad to more states. Republican Party of Minnesota vs. White was one of the many narrow 5-4 decisions in reccnt years, and Justicc Sandra Day O'Connor, the "swing vote" on the U.S. Su- preme Court, once again cast the deciding vote. She concurrcd with thc majority, but felt thc need to write a separate opinion to "express [her] concerns about judicial elections generally," fearing that "campaign donations may leave judges feeling in- debted to certain parties or imerest groups" .76 As argued above, this seems to be a perfcctly appropriate asscssment of the current dilemma in State judicial clections, and the question arises, if measures could be imroduced to counter the influence of money on the electoral outcome.

2. Potential Reform of Judicial Elections Suggestions for reforms to insulare state courts from political and interest group pressure can comc in many forms and sizes. Generally, one can differentiate between efforts that Iead to more public education and citizen involvement, which shall not be discussed here further, and new rules and regulations enacted by thc states. A first govcrnment-driven step for reform could be the cnactment of disclosure laws. In the past, many groups were able to "anonymously dump [ ... ] millians of dollars 77 imo campaigns for thc bench" , because campaign rcgulations in most statcs did not require them to disclose their donors. In 2000, a group called "Citizens for aStrang Ohio" declined to disclosc the names of its contributors who had supportcd its $4 million campaign against an incumbent Suprcmc Court justice. On the federal Ievel, the Bipartisan Campaign Reform Act of 2002 (BCRA) made disclosurc manda- tory for all groups that pay for television advcrtisements which expressly ca!F8 for the election or defeat of a congrcssional or presidential candidate. While the BCRA only aimed at political candidates, it could also become important in judicial elections. In 2003, the constitutionality of this campaign finance law was challenged by

75 The American Bar Association is a voluntary association of lawyers that currently has ap- proximately 400,000 mcmbers. Among the non-controversial activitics of the ABA arc the accreditation of law schools and the development of ethical Standards for lawyers. 76 ]ustice Sandra Day O'Connor, Concurring Opinion to Republicar1 Pttrty of Minnesota vs. \Vhite, 1. Full text available at: http://www.law.cornell.edu/ supct/pdf/01_521P.ZC. 77 Goldberg et al. (fn. 32), 36. 78 That means that the spot has to mcntion the candidatc's name and words like "vote for", "elcct", "support", "Cast you ballot for", ctc. 1-

Fifka Party and lntcrest Group Involvemcnt in U.S. Judicial Elections 305

several groups and politicians, but the Suprcme Court upheld all relevant rcquire- 79 ments of the BCRA in the decision McConnell vs. Federal Election Commission • This opens the door for individual states to enact similar laws, also applying to judicial elcctions. Such disclosure laws would certainly not Iimit the amounts that can be spent in judicial campaigns by candidates, parties, and groups, but the voters could obtain much better information about who is backing the candidates. A second, and more far-reaching step, would be to introducc contribution Iimits. Still, many states have not enacted legislation on how much money judicial camii- datcs can acccpt from contributors. Whereas amendmcnts to thc Fcdcral Elcction Campaign Act of 1971 (FECA) already introduced such regulation for federal political candidates in 1974, there simply was no need to do the same for state judicial candidates until recently. Duc to the "cost explosion" in judicial campaigns, Iimits on contributions to candidates could proviele an cffectivc instrument to reduce the !arge sums spent. However, one must also admit that contribution Iimits would not be a panacea to reduce judicial campaign spending overall. While the Iimits would affcct the amounts of money that can be given direct!y to candidates, parties and interest groups still could spent unlimited amounts for television or radio advertisements. It is unlikely that this unlimited "independent spending" will bc intcrfcred with because in its 1976 decision in Buckley vs. Valeo 80 the Supreme Court bad already declared limitations on independent expenditures by individuals and groups to be unconstitutional as they restriet thc right of frce specch guarantced by thc first amendment. Another measure to reduce campaign spending and especially the pressure for judicial candidates to raise moncy is thc introduction of public campaign financing as we know it from presidential clections. Candidates arc provided with public funds for campaigning, but are not allowed to raise money otherwise, once they luve accepted public funding. To qualify for public funds, a candidate must meet ccrtain critcria, / such as filing a declaration of intent to participate in the election and he must have raised a certain amount insmall donations from citizens -!arge donations by PACs or groups do not count- to further prove his seriousness. Such a system is especially helpful because it reduces the immediate dependence of a candidatc on wealthy donors. Some states have successfully introduced a public funding system already. In North Carolina, for example, contributions by interest groups to Supreme Court candidates have dropped roughly two thirds from 2002 to 2004. The systemalso en- counters widespread acceptance by judges and citizens. 14 out of the 16 eligible judicial candidates in North Carolina accepted public funding and thereby gave up the possibility of collecting !arge contributions from interest groups.81 Morcover, 75 percent of voters in North Carolina favored the public funding system over traditional fundraising. 82 Again, public funding is no guarantee for reduced campaign spending

79 McConnell vs. Federal Election Commission (02-1674) 540 U.S. 93 (2003). 80 Buckley vs. Valeo 424 U.S. 1 (1976 ). 81 Goldberget al. (fn. 32), 39. 82 Vaters Believe Money Influences Courts, U.S. Newswire, June 28, 2005. 306 StudZR 2/2006

ovcrall, becausc candidates cannot be forccd to acccpt public funding. Thus, a trend observable in presidential elections might also begin in judicial elections. Once candidates begin to opt out of the public funding system because they are able to raise more money by accepting contributions from partics, groups and individuals, othcr candidates also have to deny public funding and raise money the traditional way in order to stay competitive. The most far-rcaching and also most promising step to stop the dangeraus developments in state judicial clcctions is to fill judicial positions through nomination or merit selection and a following confirmation through a legislative body. In the traditional nomination process, the respective executive official is fully free to select a judicial nominee. When the concept of "merit selection" is strict!y applied, he has to choose from a Iist made by an independent commission that has screened potential candidates and evaluated their professional conduct and experience. Judicial candidates could then be appointed for lifetime, similar to fcderal judges, or the selection process could be repeated after certain periods. As this appointment procedure does not allow civic participation, sixteen states hold retention elections where voters have the possibility of denying a judgc anothcr term of office. These retcntion elections again demonstrate the dilemma of judicial elections. While they enable more citizen involvement in the democratic process, they are subject to the influence of powerful interest groups. However, financial engagement in retention elections is not nearly as attractive for parties and interest groups as in judicial elections with two or more contenders, because they do not know who the next appointee is going to be in case that the incumbent was denied another term in officc. The introduction of appointment and/or retention elections may seem promising, but the introduction of such a system is just as difficult. In most states a change of the judicial selection method would require an amendment to the state's constitution, which is difficult to obtain. Many intcrcst groups and politicians, who rcgard judicial elcctions as instruments of enacting influence, would most likcly put up fierce resistance against such legislative proposals. Despite some possibilities for reform, it is unlikcly that the current trend of rising campaign costs as weil as increasing involvement by parties and interest groups can effectivcly be stopped. Even contribution Iimits or public funding, which are easier to introduce than changes to the states' constitutions, do not offer bright perspectives because candidates and thcir supporters will always find ways to put their financial resources to work for thcir cause. Ironically enough, Justices Sandra Day O'Connor and ]ahn Patt! Stevens, who wrote the 5-4 majority opinion in McConnell vs. Fed- eral Election Commission, bad to concede that "[m]oney, like water, will always find an outlet", only to add with resignation - when looking at campaign finance - that the "problems [which] will arise [ ... ] are concerns foranother day."H 3

83 McConnell vs. Federal Election Commission (fn. 79), p. 118.